In 2019, the Utah legislature adopted the “Municipal Alternate Voting Methods Pilot Project,” pursuant to which cities could chose to participate in instant runoff voting, also known as ranked choice voting. (See Utah Code Ann. 20A-4-603.) The appeal of ranked choice voting is that it eliminates the need for calling voters back to the polls in the event of a runoff election between two candidates, where the results are too close to call.
In a traditional election, voters vote for one candidate for a particular office, whether it be a two-person or a ten-person race. If the votes for the top two candidates fall within a certain percentage, Utah law requires an automatic recount, where the ballots are recounted by hand. In extreme cases, a new runoff election may be held between the top two candidates, so as to establish a clear winner. That requires election officials to re-ballot the race and call voters back to the polls, or to the mailbox, as the case may be, thus increasing the cost of the election and delaying the results.
With ranked choice voting, people vote for, or “rank” each of the candidates in order of preference, starting with the voter’s first choice, and then ordering the other candidates from there. After the ballots have been cast, they are tabulated electronically. If a candidate receives more than 50% of the votes, that candidate wins. Otherwise, if there is no clear winner, the candidate who received the fewest number of votes is eliminated in the first round of counting. The votes for the eliminated candidate are reallocated to the second-choice candidate for the voters who ranked the eliminated candidate as their first choice. The process repeats for as many rounds as necessary until a candidate receives more than 50% of the vote. With this process the “runoff election” happens automatically, without any additional cost or delay. At least, that is the theory.
The Letter of the Law: the 2021 Sandy City Mayoral Election
Sandy City opted into the pilot project in 2021. Eight candidates ran for mayor in 2021, including Jim Bennett and Monica Zoltanski. Voters’ ballots were scanned by the Salt Lake County Clerk’s Office, and then tabulated using a computer system and software provided by Dominion Voting Systems. On election day, and continuing thereafter, the County Clerk provided a website for the public to see the tabulated results as they came in. The results on the website could be updated in real time by the click of a button. In the end, 21,165 ballots were cast, and Monica Zoltanski appeared to beat out Jim Bennett by just 21 votes in round 7 of the automatic runoff.
Mr. Bennett contested the result and called for a recount of the votes, believing that the margin of victory by Ms. Zoltanski fell within the automatic recount requirements of Utah law. (See UCA 20A-4-601(5).) The Sandy City attorney agreed with Mr. Bennett’s interpretation of the law. The Salt Lake County Clerk disagreed with the analysis but consented to conduct the recount in any event. The recount occurred on November 17, 2021, at the County Clerk’s Office. In the minutes leading up to the recount, however, it became apparent that there would be no re-scanning of the ballots, and no hand-recount either. Rather, the County Clerk would simply refresh the algorithm on Dominion’s system – something that anyone with access to the website could do. The County Clerk explained that the traditional recount procedure did not apply to ranked choice voting. According to the letter of the law, the Clerk was correct. Section 20A-4-401(1)(a) of the Utah Code expressly states that, “This section (i.e., recount procedure) does not apply to a race conducted by instant runoff voting. . . .” The Clerk expressed frustration with the state of the law but proceeded with refreshing the algorithm anyway. With no re-scanning or human re-evaluation of the ballots, the “recount” amounted to an empty gesture. The algorithm produced the exact same result as before, because there was no new data to process.
The Spirit of the Law: the 2021 Moab City Council Elections
Contrast the Sandy City results with those of Moab City, which also opted into the ranked choice pilot project for 2021. There, one of the candidates for a city council race appeared to lose by one vote in an elimination round under the ranked choice system. In another race for city council, one of the candidates appeared to lose by two votes in an elimination round. Moab City, acting through the Utah County Clerk’s office which had been hired to conduct the election, ignored UCA 20A-4-401(1)(a) and followed the spirit of the law. It recounted the ballots by hand for each race. The Utah County Clerk’s office used the same Dominion computer system and software as were used in the Sandy City mayor’s race to scan and tabulate the ballots for Moab city council races. By hand-recounting the ballots, the Utah County Clerk observed a change in the number of votes cast by 15 (out of 1,822 votes) in the first race, and by 28 (out of 1,728 votes) in the second race. Thus, for the Moab City races, the average margin of error for the Dominion system equates to 1.2%. That same margin of error could have changed the result in the Sandy City mayor’s race.
The Problems with Ranked Choice Voting
Not Every Vote Counts
The 2021 election results highlighted several problems with ranked choice voting. One is that voters are not required to rank every candidate. If a voter wants to vote for only one of several candidates, that is the voter’s prerogative. Indeed, that is exactly what happened in the Sandy City race; some people only ranked a few of the candidates. Consequently, by the time the instant runoff got to round 7 the votes of those who had not ranked every candidate no longer mattered. Many of the votes from incomplete ballots did not count in the final analysis.
Uneven Application of Election Law
Another problem is the uneven application of UCA 20A-4-401(1)(a). In the event of a recount, should the ballots be re-scanned and/or recounted by hand? Under the strict, letter-of-the-law reading of the statue, as applied by the Salt Lake County Clerk, the answer was no. However, under the looser, sprit-of-the-law interpretation of the Utah County Clerk, the answer was yes. It turns out that the ranked choice voting statute was modeled after statutes that are already in effect in other states. It is likely that the legislature glossed over the implications of 20A-4-401(1)(a), reasoning that there would be no need for a recount in a ranked-choice context, because the recount is automatic. However, the recount of the Moab City ballots demonstrated that the Dominion system is not perfect. Recounting the ballots by hand yielded changes to the number of eligible votes cast. Although the recount did not change the end results in Moab, a margin of error of 1.2% could certainly have changed the result in Sandy City. The statute, as written, does not account for any margin of error, and does not allow any re-processing or re-examination of the ballots by humans.
Denial of Due Process
Because the statute does not provide a meaningful recount mechanism, candidates such as Mr. Bennett are left hanging. There is no certainty to the result, and there is no closure. The result is, in effect, a denial of due process when it comes to elections.
For ranked choice voting to be fair to each candidate, more transparency is required, especially in hotly contested races. The statute should be amended to allow a meaningful recount mechanism where races fall within the mandatory recount threshold. At the very least, the re-count should include: (1) re-evaluating each ballot by hand, to ensure that each ballot was properly filled out; (2) eliminating ballots which are declared to be improper and including ballots which may have been initially rejected in connection with the original scan; and (3) re-running the algorithm based on the new data. Even better would be to take the Utah County Clerk’s approach and hand-recount each ballot. Of course, a complete hand-recount has some practical limitations. In the Moab City case, it was relatively easy to recount and retabulate less than 2,000 ballots. The task becomes more difficult and is more prone to human error in larger elections.
Incorporate Blockchain Technology
Because of the propensity for human error, one potential remedy is to incorporate blockchain technology with the voting process. In essence, a blockchain acts as a digital registry which cannot be altered. Every “transaction” on the registry can be tracked and verified by anyone and everyone. Voting by blockchain would require every voter to cast a digital ballot, but the ballot would be available for verification by county clerks, candidates and voters. There would be no uncertainty as to whether a ballot was properly cast, and no uncertainty as to the result of the election. Naturally, certain privacy restrictions would have to be incorporated into each digital ballot, such as redacting the identity of the voter, to maintain the integrity of the election. But the result of the election would be indisputable.
Every person who casts an honest vote is entitled to know that their vote was counted. Every candidate that runs for office is entitled to know that votes were counted fairly and accurately. The current ranked-choice system aspires to these ideals but falls short with its practical application as currently implemented. Changes are needed to protect the integrity of the process, and to give certainty and closure to the candidates and to the voters.